Denying Asylum Claims of the Persecuted

Following the terrorist attacks of 9/11, Congress made drastic changes to immigration law.[1] These changes, such as the passage of the REAL ID Act of 2005, significantly expanded restrictions on immigration.[2] Unsurprisingly, part of the expanded restrictive laws was aimed at barring people from being granted asylum who had provided “material support” to certain designated terrorist organizations. While this may seem innocuous enough on its face, the legislation has been rightly criticized as being overly broad and excessive. In particular, part of the legislation has resulted in thousands of refugees and victims of crime being unable to secure safety in this country.[3] This law is known as the “material support bar” under the Immigration and Nationality Act.[4]

The material support bar was originally implemented in 1990.[5] However, the passage of the Patriot Act and the Real ID Act, after September 11, 2001, resulted in an expansion of what the material support bar covers. For example, because the legislation has been interpreted very broadly, groups not normally considered to be terrorist organizations are now considered so under the statute.[6] Additionally, Immigration and Customs Enforcement (ICE) has argued that any level of support is material support, negating the possibility of a minimal amount of support that would not be covered by the bar.[7] For example, a person who had a gun held to their head and was demanded to give up their keys or wallet would fall under the material support bar.[8] Furthermore, there is no duress exception to the bar, resulting in victims of persecution being barred from gaining asylum in the United States.[9] Because there is no duress exception, someone who was kidnapped, raped, and forced to essentially be a sex slave for a terrorist organization would be considered as having materially supported terrorism.[10] While the Congressional Record seems clear that these were not the people intended to be excluded from seeking asylum, courts have held that they are indeed barred from a grant of refugee status based on the material support bar.[11]

The only recourse a victim of persecution would have to the material support bar would be to apply for a waiver under INA § 212(d)(3).[12] The waiver allows for the Secretary of State to waive the material support bar in certain instances.[13] However, the waiver process is extremely slow and complicated, especially for those people who do not have legal counsel.[14] Moreover, DHS may only consider the waiver after the conclusion of removal proceedings.[15] Even more worrisome, President Donald Trump recently drafted an Executive Order asserting that the “Secretaries of State and Homeland Security, in consultation with the Attorney General, shall consider rescinding” the authority to grant a waiver for the material support bar.[16] Essentially, this would leave victims of crime who have fled to the United States for safety with no ability to seek asylum or refugee status. The material support bar has been construed too broadly, forcing aliens with otherwise valid asylum claims to return to the country where they may have been tortured, raped, or otherwise persecuted. The waiver should not be done away with and both Congress and the new administration should take the initiative to further correct the unintended consequences of the material support bar.

[7] The Board of Immigration Appeals recently requested amicus curiae briefs regarding whether the word “material” in “material support” has any separate meaning, or whether any support is always to be considered material support. BIA Amicus Invitation No. 17-01-09 (Material Support Bar) (due February 8, 2017).